Canberra Building and Maintenance Pty. Ltd. v Wna Construction Pty Ltd

[2021] ACTSC 132

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Canberra Building and Maintenance Pty. Ltd. v WNA Construction Pty Ltd

Citation:

[2021] ACTSC 132

Hearing Date:

27 May 2021

DecisionDate:

27 May 2021

Before:

Burns J

Decision:

See [8]-[9]

Catchwords:

CIVIL LAW – APPEAL – Appeal from Magistrate – summary judgment – consideration of whether triable issues exist – whether the Building and Construction Industry (Security of Payment) Act 2009 (ACT) applies

Legislation Cited:

Building and Construction Industry (Security of Payment) Act 2009 (ACT)

Cases Cited:

House v The King (1936) 55 CLR 499

Parties:

Canberra Building and Maintenance Pty. Ltd. (Appellant)

WNA Construction Pty Ltd (Respondent)

Representation:

Counsel

S Onitiri (Appellant)

B Buckland (Respondent)

Solicitors

Chamberlains Law Firm (Appellant)

Kamy Saeedi Law (Respondent)

File Number:

SCA 1 of 2021

Decision under appeal: 

Court:  ACT Magistrates Court

Before:  Magistrate Lawton

Date of Decision:          2 December 2020

Case Title:  Canberra Building and Maintenance Pty. Ltd. v WNA Construction Pty Ltd

Court File Number:      CS 88 of 2020

BURNS J:

1. This is an appeal from a decision of a magistrate made on 2 December 2020 in which the Magistrate refused to enter summary judgment for the appellant against the respondent.  The decision of the Magistrate was very brief.  The Magistrate said, and I quote:

Summary judgment for the plaintiff is to be given sparingly, and, as I note was said in the High Court in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, it should not be exercised unless it is clear that there is no real question to be tried. Having heard the submissions of both Mr Smith for the plaintiff and Mr Buckland for the defendant, I cannot reach the conclusion that there are no real questions to be tried. It seems to me that there are issues relating to who the contract was between, whether in fact, it was between the plaintiff or Mr Reid in person.

Further, it seems to me that there is a question to be tried as to the terms of the contract.  In those circumstances, I am reluctant to enter summary judgment and the application will be refused.

1. The first issue which needs to be considered is the nature of the decision which was made by the Magistrate.  There appears to be no real dispute between the parties to the present appeal that the Magistrate was exercising a discretion and as such, the principles set out in House v The King (1936) 55 CLR 499 apply to the present appeal.

1. It was submitted on behalf of the respondent that no error of fact or law on the part of the Magistrate has been demonstrated.  As I understood the submissions made by Mr Onitiri on behalf of the appellant, the appellant submits that when one considers the evidence which was before the Magistrate there was no real alternative to the Magistrate entering summary judgment for the appellant; in other words, that the evidence before the Magistrate was of such cogency that no decision other than the entry of summary judgment for the appellant was a reasonable one.

1. I am grateful to counsel for their assistance in their submissions before me today.  I have reached the firm conclusion that the present appeal should be dismissed.  I am satisfied that there are issues which are triable issues which remain to be determined in the claim made by the appellant against the respondent in the ACT Magistrates Court. 

1. Those issues are, effectively, the nature of the contract or other arrangement said to have been entered into between the appellant and the respondent and also Mr Reid, who, as I understand it, is a director of the appellant, and whether any such contract or arrangement falls within the terms of the Building and Construction Industry (Security of Payment) Act 2009 (ACT), which I will refer to as the Act.

1. It is not sufficient, to bring a contract or arrangement within the terms of the Act, that a party simply issues an invoice which is expressed to be an invoice to which the Act applies. The claiming party must always bring themselves within the terms of the Act and that may well require, and in many cases will require, evidence to be given about the nature of any contract or other arrangement and whether that is one which comes within the terms or is covered by the terms of the Act.

1. There are also issues relating to the amounts claimed in the invoice, which is the subject of the claim in the ACT Magistrates Court, and whether they are amounts that are covered by the terms of the Act, such that the provisions of the Act relating to the consequences of a non-production of a payment schedule by the respondent apply.

Orders

1. In my opinion, no error has been demonstrated or is to be inferred from the decision of the Magistrate and the appeal will be dismissed.

1. I am going to award that costs be costs in the cause in the proceedings before the Magistrate.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: 1 July 2021